A group of lawmakers voted Tuesday to continue the state's challenge of No Child Left Behind — but with new concerns whether the high-profile, states' rights battle could hurt students by jeopardizing funding or letting ethnic minorities slip through the cracks.

The questions, and assurances neither would happen, arose at the Education Interim Committee's public hearing on NCLB. The meeting was called to gear up for a special legislative session two weeks from now where HB135, which challenges NCLB's reach, will take center stage.

Federal officials did not attend the meeting, saying they were short-staffed and previously committed, legislative staff reported. But others, including the National Conference of State Legislatures, residents, school leaders and congressional staff members, chimed in — overwhelmingly in favor of Utah's quest.

"The clarity achieved in this meeting has been phenomenal," said committee co-chairman Sen. Howard Stephenson, R-Draper.

The 2001 federal law aims to have all students, regardless of race, income or disability, reading and doing math well by 2014. It measures schools' annual progress toward the goal, and it red-flags schools where any one group of students isn't up to snuff. A main idea is to close the achievement gap between whites and ethnic minorities.

But the law's all-or-nothing approach has irritated Utah policymakers. They say education is constitutionally a state responsibility and that the federal government has overstepped.

They also think that U-PASS, the state's accountability system, is a superior way to hold schools accountable for student achievement. U-PASS includes the same tests as NCLB, plus more, and focuses on individual student growth, they note.

The state has been negotiating with the U.S. Department of Education to use U-PASS to comply with NCLB, plus other requests to loosen testing requirements for students with disabilities and who are learning to speak English.

Other recent requests, such as one to let the state decide whether elementary schoolteachers are highly qualified, have been granted — some speculate, because the state Legislature has rattled chains in Washington.

State Rep. Margaret Dayton, R-Orem, last year carried a bill to opt out of NCLB but backed off when federal officials told her the bill would cost the state $106 million in federal funds.

This year, she carried HB135, which would give Utah's educational goals priority over No Child Left Behind, particularly when it comes to directing resources and doing what state education leaders believe is best for students.

The bill had unanimous support up until its final Senate hurdle. Legislative leaders and Gov. Jon Huntsman Jr. agreed to hold off on the bill until an April 20 special session to give Utah more time to negotiate with the federal government on NCLB flexibility.

Tim Bridgewater, the governor's education deputy, who has met four times with federal officials, believes the special education testing flexibility will come, but not all other requests.

"At this point, we have not received the flexibility we have requested," Bridgewater said. "The governor would sign the bill as it passes the Legislature."

But some, both in and outside of Utah's borders, question whether that would be a good thing.

Anti-NCLB sentiment is common among states. Tuesday, Connecticut announced it was preparing a lawsuit challenging NCLB as an underfunded mandate, the first state to do so.

But Utah so far has been the most bold legislatively and has garnered some criticism.

A Tuesday editorial in The New York Times lambasted Utah as simply not wanting to close the achievement gap. The editorial refers to U-PASS as weak and not collecting student data based on race and ethnicity.

Education Secretary Margaret Spellings apparently plans to give states some flexibility — with a catch. The Associated Press reports she would give preferential treatment to states proving they will raise achievement in return.

U-PASS rules require schools to report achievement of different student groups. But it doesn't hold them accountable for each group's achievement, said Charlie Hausman, assistant superintendent in the ethnically diverse Salt Lake City School District.

In other words, he says, the state could deem a school as doing well when it really is leaving Hispanic students in the dust, for instance.

"It is true U-PASS will report disaggregated data, but it is not true that there would be subgroup accountability at this point," Hausman said. "There are some requests that it's appropriate (for the federal government) to say no to because they're not the right thing to do."

Also at issue is Utah's plan to require schools to have at least 40 students in each group before they're held accountable for their achievement under NCLB.

The current requirement is 10 students in a group.

Changing that to 40 would make it so two, instead of the current 29 schools, would be held accountable for achievement of black third- through eighth-graders, Hausman said.

That concerns Charles Henderson, a member of the Coalition of Minorities Advisory Committee to the State Board of Education.

"The message to me as a minority is, if there's not enough (minority) students in my school . . . I may not count. My greatest concern is that is the message we're sending to our children."

Rep. Duane Bourdeaux, D-Salt Lake, who had voted for HB135 in the legislative session, decried the change and called a community meeting for today.

Harrington says minority student performance still would be reported under U-PASS for groups with 15 or more students, exposing achievement gaps.

She's trying to stop misidentifying schools as needing improvement based on an arbitrary federal goal instead of the improvements of individual students. And requiring 40 students in a group came after discussions with educators and advisory groups including CMAC.

"Clearly we may need a dialogue on this," she said. "I'm not stuck on 40. It's the recommendation that came out of the group."

Money also repeatedly came up as a worry: What if the federal government views the bill as Utah falling out of compliance? Could it yank some $115 million?

Federal officials have raised the funding issue, Bridgewater said. But he feels that's because they've misunderstood HB135 as an opt-out bill.

Huntsman's legal counsel Mike Lee believes the bill won't jeopardize funds.

"I've grown increasingly comfortable with the idea we would not be breaching our obligation under No Child Left Behind," he said.

Harrington vowed to follow the spirit of NCLB so funds are not jeopardized.

But Bourdeaux wants a definitive answer on whether Utah could lose funds. No one has one — which is reason enough to stop pursuing the matter.

Meanwhile, he wants the bill amended to place the group number back at 10 for accountability purposes. Others wanted it to spell out what the state is going to do to help minority students, and a provision to ensure money isn't jeopardized.

The committee did not take up those amendments, which some called tangential. But they could be proposed in the special session.

"I think we all learned some things today," said Sen. Patrice Arent, D-South Cottonwood. "There's some tweaking we need to do."


E-mail: jtcook@desnews.com